I move the previous question: The final days of the filibuster

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In the commentary, David W. Wise argues that the Senate filibuster, in all its forms, is unconstitutional.

Last week’s action to limit the use of filibusters to block judicial nominations should be just a first step in the removal of practices of questionable constitutionality endemic to the dysfunction that permeates Congress. Although the Constitution creates a system of checks and balances and deliberation, that system was not intended to be impotent. Quite the contrary, this system was quite consciously created to replace the Articles of Confederation (which had required supermajorities incapable of taking effective action or raising the funds necessary to meet national obligations), a system that in effect is not dissimilar to Congress as it has devolved in recent times.

Although the Senate’s action was decried by some as an attack on “venerable” ancient traditions, nothing could be further from the truth. The filibuster was unknown in the British Parliament including the continuous House of Lords, the colonial legislatures, the Continental Congress, and the Constitutional Convention, and it would have been out of order in the U.S. Senate of the First Congress. In fact, Vice President Thomas Jefferson, who as the second President of the Senate, wrote in his Manual of Senate rules that, “no one is to speak impertinently or beside the question, superfluously or tediously.” The action that allowed what later became known as the filibuster resulted as an inadvertent unintended consequence of a rule change in 1806, but was first employed – and then on a limited basis – for the purpose of obfuscation in 1841 almost a half century into the Senate’s existence.

The length of time that the tradition of the filibuster has been practiced is irrelevant. The filibuster is clearly unconstitutional and cannot gain pedigree by the passage of time any more than could the longstanding practices of segregation or racial bias – often the causes in which the service the filibuster had been employed. The Constitution in Article I, Section 5 clearly states that a majority of each house is qualified to do business. Article I Section 3, empowers the Vice President as President of the Senate to cast the deciding vote when the Senate is “equally divided.” The Constitution and Amendments provide for just seven explicit exceptions to this majority rule on questions James Madison said were “too important to be exercised by a bare majority of a quorum.” The Constitutional Convention debated and explicitly rejected requiring supermajorities in any other cases and the reasons for this position were elaborated upon by Alexander Hamilton in Federalist 22 and James Madison in Federalist 58. Under the principle of expressio unius est exclusio alterius (to which the Framers adhered in the Ninth and 12th Amendments) no other exceptions to rule by a majority of a quorum are permissible under the Constitution.

Defenders of the filibuster will nevertheless retreat to the marshy ground that the Constitution also permits each house of Congress to set its own rules. Very true, but that grant of authority deals with procedural rules, not substantive matters which determine or, in the case of the filibuster, create supermajority requirements not stated in the carefully crafted text of the founding document. While an argument could be made that the stereotypical filibuster of Mr. Smith Goes to Washington fame might be a point of procedure (i.e. unlimited debate), the modern stealth filibuster (in combination with the tracking rule) creates a de facto requirement that major legislation meet a sixty vote majority in actual practice or that through the practice of “holds” an individual senator acquires a veto power which the Constitution only grants to the president. That something quite different from classic unlimited debate is now taking place is illustrated by the fact that in the entire 19th Century only 16 filibusters took place, while in 2009-10 there were 130 accompanied by no debate. The all-too-cute argument that none of this restricts the president’s power to “nominate” is handily dismissed in Emmet J. Bondurant’s exceptional essay “The Filibuster: The Politics of Obstruction” in the Harvard Journal on Legislation. Bondurant analogizes these practices with the illegal White Primary laws which allowed African Americans to vote, but where the actual outcome was decided in a prior act that essentially nullifies that right. In other words, the stealth filibuster is not procedural, it is substantive and integral.

In the final analysis, the heart of the issue regards the manner in which Senate rules get made, rather than the filibuster itself. In 1975, a compromise was reached in lowering the number of votes required to limit debate (“cloture”) from two-thirds, to three-fifths. That same compromise, however, still required a two-thirds vote to make any further changes to the cloture rule. This compromise violated several well-established parliamentary rules: (1) the aforementioned power of a majority of a quorum, (2) the power of the President of the Senate to preside and make procedural rulings, and (3) the principle handled down from England that a parliament cannot bind future parliaments.

The argument has been made that, unlike the House, the Senate is a continuous body and that therefore the 1975 compromise is inviolate. This argument does not hold up to scrutiny. Although only one third of the Senate is elected every two years, every third election has 34 seats in the balance which undermines the continuity of 67 Senators required for the current rule. In addition, the Senate (including the website of the Minority Leader who now objects to the rule change) – not just the House – numbers its sessions as though it were a new Congress (currently the 113th Congress) and elects new leaders every two years.

Constitutional questions ultimately end up before the Supreme Court for final resolution, which implies that the question could reside in a legal limbo. Yet, Marbury v. Madison, like many questions that have gone before the court, also involved political questions. Although it would require a Senator to violate the increasingly less cordial customs of the Senate Club, any Senator would seem to have standing if he or she were denied the ability to cast a vote due to a stealth filibuster in violation of majority rule. The Vice President, as President of the Senate, would also seem to have standing first as a presiding officer whose rulings should be appealed to a majority vote of the Senate and, far more clearly, in being denied the exercise the explicit Constitutional power to cast a deciding vote in the case of a tie.

The court in U.S. v Ballin (1892) showed a willingness to delve into these matters in affirming under other fact circumstances that in the question of the filibuster, Congress is empowered to act by a majority of a quorum, that its power to set rules cannot ignore “constitutional restraints,” and that rules should be interpreted in light of the rules of parliamentary bodies “that prevailed at the time of the adoption of the Constitution.” The days of the filibuster should be over.

David W. Wise, a businessman who resides in Annapolis, Maryland, publishes frequent commentaries on public policy issues. He holds a graduate degree from The Fletcher School of Law and Diplomacy at Tufts University.

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